Complainant

Respondent

Parties

Louise  Tierney

Palomar Ltd Mcswiggans Restaurant

Complainant

Respondent

Representatives

  Self- represented

 ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039429-001

29/08/2020

The complainant submits that she did not receive her statutory entitlements to paid notice as required by the provisions of the Minimum Notice & Terms of Employment Act, 1973.

The complainant was employed as an assistant manager in the respondent’s restaurant from 13 December 2001 until she was made redundant on 10 August 2020.

She worked 39 hours a week. Her gross weekly wage was €644.23.

She submitted her complaint to the WRC on 29 August 2020.

Witness 1: Complainant’s evidence.

The complainant states that the respondent failed to pay her statutory notice of eight weeks at her weekly, contractual rate of €644.

The respondent closed its doors on March 15, 2020 in line with the then Covid 19 regulations.

In May the respondent asked all staff to change the terms and conditions of their employment. The complainant agreed to take a pay cut but declined to accept altered conditions of employment.

On May 29 the complainant and all staff were put on notice of risk of redundancy. The respondent director emailed her on 2 June to inform her of her entitlement to 8 weeks’ notice. On the 15 of June the financial controller notified her of her redundancy calculations but omitted any reference to paid notice. She emailed the financial controller stating she was due eight weeks’ paid notice. On the 15 of June, he responded saying that the PUP payments covered her notice period.

Though available and willing, she was not asked to work her notice. Her contract entitles her to payment in lieu of notice. During her notice period, when she was not given the option of working, a new person was appointed to the respondent’s management team and worked during July and August 2020 doing some of the complainant’s work.

The complainant’s written submission refers to her entitlement to notice based on section 4 (e) of the Act of 1973. She also maintains that the First Schedule, section 4, sub-section 5, cited by the respondent as a reason to disentitle her to notice, does not apply in her circumstances as Government Regulations, viz., Emergency Measures in the Public Interest Covid-19 Act, 2020, did not permit employees to apply for or seek redundancy at that time.

Preliminary Issue

The respondent states that the complainant has been brought under the wrong Act and the right to amend has now expired. The correct Act is the Minimum Notice and terms of Employment Act, 1973

Substantive complaint.

The respondent contests the complainant’s entitlement to payment in lieu of notice at her previous rate of pay. He submits that the Second Schedule of the Act of 1973, sub section 2, guaranteeing normal rates of pay during the period of notice, does not apply where the employee has been deemed to have voluntarily left his/her employment due to a redundancy, thus forfeiting her right to notice in these circumstances and forfeited, additionally, by virtue of section 4, subsection 5 of the First Schedule of the Act of 1973, as amended, even though the redundancy is not of her own or the respondent’s making. The complainant was in receipt of Pandemic Unemployment Payment (PUP) for the period of her notice.

The complainant’s gross weekly salary was €644.23, her net salary was €526. Hence the difference between her net salary and PUP is €176.21 which will be taxable should the adjudicator uphold her entitlement to paid notice.

Should it be determined that the complainant has an entitlement to paid notice in accordance with the Second Schedule, section 5, subsection 2(a), then the complainant’s entitlement should be calculated as per subsection 3 of the Second Schedule, and should, accordingly, be based on her average weekly earnings in the thirteen weeks preceding the giving of notice which was the 15 June 2020. The respondent states that for these thirteen weeks preceding the 15 June, her average pay was the PUP payment of €350 per week.

 Preliminary issue: Complaint brought under incorrect Act.

The complaint has lodged the complaint under the Redundancy Payments Act, 1967, while the narrative in her complaint form and the evidence presented at the hearing clearly indicates that she is seeking payment in lieu of eight weeks ‘notice and nothing else.

The matter of naming the wrong Act was addressed as a preliminary matter in A Former Tutor V An Education and Training Board, ADJ 00025369. That complainant had put a claim in under the Organisation of Working Time Act, 1997. The adjudication officer relied on the case of County Louth VEC -v- The Equality Tribunal 2016 IESC40 where Mr Justice McKechnie in the Supreme Court stated:

“As is evident from the aforegoing…the initiating step for engaging with the provisions of the 1998 Act is that the applicant…seeks redress by referring the case to the Director. …In the absence of any statutory rule to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to be used in this regard… I agree with the view that there is nothing sacrosanct about the use of an EEI Form to activate the Jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purposes. In fact, the Tribunal itself has so held in a Female Employee – v- Building Product Company DEC-E 2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end”

While Brannigan referred to the Employment Equality Acts, the adjudication officer concluded that the referral of a complaint to a judicial body using a non-statutory form is equally applicable in this case. Given that the complaint form used by the WRC is not a statutory form and the narrative in that complaint form clearly indicated that the complainant was seeking redress in relation to a non-payment of wages, the adjudication officer accepted that it was permissible to amend the claim and that she had jurisdiction to hear the complaint under the Payment of Wages Act, 1991.

In the instant case, the respondent is on notice of the precise redress being sought by the complainant and is in possession of the details of her complaint since August 2020.The complainant is unrepresented. The respondent lodged no objection to the naming of the incorrect Act until the hearing. His defence of her complaint for payment of notice is wholly based on the provisions of the Minimum Notice and Terms of Employment Act, 1973 which he believes underscores his position that there is no entitlement to the amount of paid notice as claimed by the complainant, Therefore, no disadvantage falls to the respondent by altering the legislation.

I decide that I do have jurisdiction to hear this complaint under the provisions of the Minimum Notice and terms of Employment Act, 1973.

Substantive complaint

I am required to decide on the complainant’s entitlement to paid notice in accordance with section 4(2)(e) of the Act of 1973 which provides for eight weeks paid notice in respect of the complainant’s service of 18.62 years.

The respondent notified her on the 15 June that her termination date was to be the 10 August and her redundancy was calculated in respect of the period 31/12/201 – 10 August 2020.

The respondent requests that I accept that as she was made redundant, she resigned and is therefore ineligible for notice payment of eight weeks in accordance with section 4, subsection 5 of the First Schedule of the Act of 1973, as amended.

I do not accept that her acceptance of redundancy deprives her of the right to seek paid notice in accordance with the provisions of the Act of 1973, as the complainant did not apply for redundancy nor could she have due to the Government regulations in force at the time, viz., the Emergency Measures in the Public Interest Covid-19 Act, 2020 which prohibited an employee from applying for redundancy in the circumstances obtaining in the respondent’s business. The decision to make the complainant redundant was delivered to her as a fait accompli.

The advent of Covid and payment of PUP did not undo the statutory entitlement to notice in accordance with the terms of the Act of 1973-terms which survived intact. I accept that the complainant has a statutory entitlement to paid notice in accordance with section 4(2)(d) of the Act of 1973. I find this complaint to be well founded.

Calculation of notice payments.

The Second Schedule, section 5, subsection 1 section provides

” Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.”

and subsection 2(a)(i) of section 5 states

“An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

The respondent states that complainant’s entitlement to paid notice is governed by section 3 of the Second Schedule which is in respect employments for which there are normal working hours and which provides as follows:

” Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice”.

The complainant worked 39 hours a week and no evidence was offered of any fluctuating hours. Hence, the calculation of her notice pay should be governed by subsection 1 of subsection 5 which provides for her notice pay to be based on her normal weekly wage.

The complainant was given notice on the 15 June. She was laid off on the 16 March. The reckonable period for calculation is the thirteen weeks preceding the layoff.

 I do not find any statutory basis to reduce the entitlements of an employee to notice in accordance with the provisions of the second schedule notwithstanding that she was in receipt of PUP during the notice period.

The question of the impermissibility of dual payments (Salary and PUP) is a matter between the complainant and the Department of Social Protection and is not within the remit of an Adjudicator charged with examining a complaint under the Minimum Notice and Terms of Employment Act, 1973.

I require the respondent to pay the sum of €5154 to the complainant, which represents eight weeks’ wages, subject to all lawful deductions.

I find the complaint to be well founded. I require the respondent to pay the complainant the sum of € 5154, subject to all lawful deductions.

Payment in lieu of notice; Covid 19 induced redundancy; effect of PUP on calculation of notice payments.